New Issue: Volume 109, Issue 1

New Issue Volume 108, Issue 4: Bail Bond Reform

Revisiting Voluntariness: Seeking Clarity in the Era of False Confessions

Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What’s Next

By: Van Brunt, Alexa,Bowman, Locke E. | March 29, 2019

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain how these earlier efforts both influenced and created the conditions for the third wave reforms that are now underway, including a “groundswell” of class action litigation that seeks to minimize pretrial detention by breathing new life into longstanding principles of equal protection and due process. We then analyze the impact of these third wave reforms nationwide, while using Cook County as a case study. The results suggest reason for both optimism and caution, particularly in jurisdictions where advocates have been willing to trade a more expansive scheme of preventive detention for the elimination of the cash bail system. We conclude with observations in support of a just system of pretrial release—one that relies neither on money bond nor on preventive detention measures. This system is one in which the vast majority of the presumptively innocent people charged with offenses are immediately released back into their communities. It is a system in which courts provide services rather than onerous conditions, to minimize failures to appear in court, mitigate recidivism, and ensure that communities are not decimated by unconstitutional pretrial detention. While this model is not without some societal risk, we contend it is the only tolerable outcome under our constitutional system.

Motus Animi in Mente Insana: An Emotion-Oriented Paradigm of Legal Insanity Informed by the Neuroscience of Moral Judgments and Decision-Making

By: Coppola, Federica | March 29, 2019

Legal insanity is deeply rooted in an intellectualistic conception of the capacity for moral rationality. The vast majority of insanity standards essentially consider the integrity of the defendant’s cognitive faculties at the time of the offense. However, the cognitivist model of legal insanity collides with the body of neuroscientific and behavioral literature about the critical role of emotions in moral judgments and decision-making processes. Drawing upon this scientific knowledge, this Article reforms the intellectualistic substance of the capacity for moral rationality that underlies the insanity doctrine by including emotions in its relevant psychological set. Hence, it provides a revised model of legal insanity, one that gives more prominence to individuals’ emotional faculties in relation to the crime committed. The analysis highlights that the legal reconsideration of the role of emotions within the capacity for moral rationality turns the insanity defense into a tripartite, more dimensional test—one inclusive of emotional, cognitive, and volitional prongs. Normative arguments in support of the proposed alternative paradigm of legal insanity are illustrated and discussed.

A Guiding Hand or a Slap on the Wrist: Can Drug Courts be the Solution to Maternal Opioid Use?

By: O'Connor, Cara | March 29, 2019

As the opioid epidemic has expanded its reach, the number of pregnant women addicted to opioids has increased exponentially in recent years. The increase in the number of opioid-addicted pregnant women has resulted in a drastic expansion in the number of newborns who experience Neonatal Abstinence Syndrome (NAS). Newborns affected with NAS experience painful withdrawal and cost more to care for due to their increased health needs. In an effort to address the growing number of pregnant women using opioids and babies born with NAS, some states have turned to the criminal justice system. Three states–Tennessee, South Carolina, and Alabama–have criminalized maternal drug use, either through construction of a new statute or by using existing statutes for this purpose, which has been upheld in their courts. Although high courts in many other states have continuously determined that such prosecutions are unlawful, women across the United States continue to face criminal charges for their substance use while pregnant. This Comment addresses the concerns opioid addicted pregnant women pose to the criminal justice system and argues that drug courts are a crucial component to comprehensive reform. The drug court system needs to follow the lead of a recently established drug court in Buffalo, New York and embrace necessary reforms to better serve the health needs of pregnant women struggling with opioid addiction. This Comment argues the following reforms are necessary to effectively adjudicate cases involving pregnant drug use: expedited proceedings to begin treatment and avoid jailing; access to medication-assisted treatment; allowing women to spend time with their newborns; an appropriate sanctions system that recognizes the medical reality of relapse; and funding considerations that prevent women from having to pay for treatment. If drug courts are part of a comprehensive solution to treatment for opioid addiction, these reforms can contribute to better meeting the health care needs of women and their children.